Dec122025
Probate Q&A Series

Do we need to record a death certificate or an affidavit before closing so the deed can be conveyed without issues? – North Carolina

Short Answer

Under North Carolina law, when spouses hold title to real estate as tenants by the entirety and one spouse dies, full ownership passes automatically to the surviving spouse by right of survivorship. A separate estate proceeding is not required just to clear title. In practice, most closing attorneys and title companies will require a certified copy of the death certificate (and sometimes a simple survivorship or non-probate affidavit) to be recorded with the Register of Deeds before or along with the deed to the buyer, so the chain of title clearly shows the surviving spouse as sole owner.

Understanding the Problem

The narrow question is whether, in North Carolina, a surviving spouse who now owns a home outright by tenancy by the entirety must first record a death certificate or affidavit before selling the property so that the deed to the buyer can be conveyed without title problems at closing. The concern is focused on a single upcoming sale of a residence, previously titled to a parent and step-parent as tenants by the entirety, where the step-parent has died and the parent is now the sole record owner under the deed’s survivorship language.

Apply the Law

North Carolina treats tenancy by the entirety as a form of ownership between spouses that carries a built-in right of survivorship. Upon a spouse’s death, the surviving spouse becomes the sole owner of the real property by operation of law, without the deceased spouse’s interest passing through probate. The main legal questions are how that automatic transfer affects title and what documentation the recording system and title insurers typically expect to see before a sale closes.

Key Requirements

  • Tenancy by the entirety ownership: The recorded deed must show that the property was held by spouses as tenants by the entirety (for example, naming them as married to each other), so that the survivorship rule applies.
  • Death of one spouse: When one spouse dies, the deceased spouse’s interest in the entirety property ends and does not pass to heirs or the estate; the surviving spouse becomes the sole owner.
  • Evidence of death and survivorship in the land records: While no separate court order is required, recording a certified death certificate and, in many cases, a brief survivorship or non-probate affidavit with the Register of Deeds is the standard way to show the survivor’s title in the public record before or at closing.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the parent and step-parent held the home by the entirety, so under North Carolina law the surviving parent became the sole owner the moment the step-parent died. No heirs of the step-parent need to join in the sale. However, because the last recorded deed still shows both spouses, most closing attorneys and title insurers will want a certified copy of the step-parent’s death certificate recorded in the county’s Register of Deeds, often with a short survivorship or non-probate affidavit, before or contemporaneously with the deed to the buyer. That recorded documentation gives the closing attorney and buyer clear proof, in the land records themselves, that title is now vested solely in the surviving parent.

Process & Timing

  1. Who files: Typically the closing attorney or the surviving spouse through the closing attorney. Where: With the Register of Deeds in the North Carolina county where the property is located. What: A certified copy of the deceased spouse’s death certificate (obtained from the Register of Deeds or Vital Records office where the death occurred) and, if the closing attorney or title insurer requests it, a short survivorship or non-probate affidavit signed and notarized. When: Ideally a few weeks before closing, but at the latest, recorded immediately before or along with the deed to the buyer.
  2. After the Register of Deeds records the death certificate (and any affidavit), the closing attorney prepares and records the new deed from the surviving spouse to the buyer at or right after closing, along with any deed of trust the buyer’s lender requires. Recording usually occurs the same day the closing is completed, subject to county workload.
  3. The final step is issuance of the recorded deed in the buyer’s name and a title policy based on an updated title search that now shows: original deed to the spouses as tenants by the entirety, recorded death certificate (and affidavit, if used), and the new deed from the surviving spouse as sole owner to the buyer.

Exceptions & Pitfalls

  • If the original deed did not actually create a tenancy by the entirety (for example, the parties were not legally married or the deed language is unclear), survivorship may not apply and heirs of the deceased spouse could have an interest, which changes the entire analysis.
  • In rare “slayer statute” situations, where one spouse unlawfully kills the other, special rules limit survivorship; in those cases, the deceased spouse’s estate may still have a share in the property.
  • Failing to record the death certificate (and any requested affidavit) before recording the deed to the buyer can lead to questions in the chain of title and may cause a title insurer to delay or refuse to issue a policy until the record is corrected.
  • Using an uncertified or incorrect death certificate, or one with mismatched names compared to the deed, can slow down closing while corrections or additional proof are obtained.

Conclusion

In North Carolina, when a home is owned by spouses as tenants by the entirety and one spouse dies, the surviving spouse becomes sole owner automatically and can convey good title without a probate proceeding for that property. To avoid title issues at closing, however, a certified death certificate (and, if requested, a simple survivorship or non-probate affidavit) should be recorded with the county Register of Deeds before or along with the deed conveying the property to the buyer.

Talk to a Probate Attorney

If a home in North Carolina was owned by spouses and one has passed away, and there is an upcoming sale or closing, our firm has experienced probate attorneys who can help clarify what needs to be recorded and when. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.